ПРАВНА ПРИРОДА МЕРЕ ОДУЗИМАЊА ИМОВИНСКЕ КОРИСТИ И ЊЕН ПРАКТИЧНИ ЗНАЧАЈ
THE LEGAL CHARACTER OF THE MEASURE OF TAKING AWAY OF PROPERTУ BENEFITS AND ITS PRACTICAL SIGNIFICANCE

Summary/Abstract: The issue of legal character of the measure of taking away of property benefits (provided in article 84 of the Criminal Law of the SFRY, of 1976) is rather controversial in the theory, which includes the question of its position in the comparative criminal legislation. Thus, there exists a conception that this measure, in terms of its legal character, is a penalty (or an additional penalty), then a security measure, the specific criminal-law measure, specific legal consequence of a criminal act, or a property-law measure.. Most acceptable is the conception according to which this is a property-law measure aimed at establishing the preceding property situation, namely the one which existed prior to committing the criminal act. That measure is based on equity, namely on the general legal principle according to which no one is entitled to be enriched by committing a criminal act. The significance of this theoretical question is rather great, since depending on the conception of legal character of that measure, one obtains different answers to controversial issues emerging in judicial practice applying this measure. This is particularly true in determining the property benefits w'hich should be taken away by court’s decision from the perpetrator. Since according to general conception that property benefits may be only »a net profit«, which, effectively increases the property of perpetrator, the problem arises in practice as to what expenses should be granted to such a perpetrator in order to decrease the obtained property benefits, so that only the rest as »a net profit«, could be taken away by means of that measure. If the conception is accepted according to which this measure is by its legal character a property-law measure, then the perpetrator should be granted all the espenses for" diminishing the property benefits, except the ones which are contrary to morals (since also according to the civil law rules a party is not entitled to request compulsory execution of an immoral contract). In addition to that, only the real (effective) expenses incurred bv the perpetrator should be granted, regardless of the fact that they could’ have been lower in the specific case should the perpetrator acted with due care. If the property-law conception of the measure is accepted, moreover, the obtained property benefits should also bo decreased by the value of objects eventually taken away from the perpetrator in course of criminal, customs duty or contravention procedures, which should include the amount of fine paid in course of the customs or contravention procedures.

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